Maina Kumari Rai v Advantage Insurance Company Limited (t/a Hastings Insurance)

Introduction

Ms Maina Kumari Rai (‘the Claimant’) was struck by a motor car being driven by Mr Thomas Bolton. As a consequence of the accident, the Claimant now lacks the required mental capacity to conduct court proceedings. The claim has therefore been brought on her behalf by her sister, Ms Anita Rai (‘Ms Rai’), who acts as her litigation friend. Ms Rai is also a witness as she was with the Claimant at the time of the collision. The Defendant, Advantage Insurance Company Limited (trading as Hastings Direct), was Mr Bolton’s insurer at the material time. The Claimant seeks damages for the personal injuries she sustained in the collision, which she alleges was caused by the negligence of Mr Bolton.

By order of Master Yoxall (sitting in retirement) dated 19 February 2026, liability and contributory negligence were directed to be determined as preliminary issues. Therefore, the questions for consideration are: (i) whether the collision occurred as a result of Mr Bolton’s negligence; (ii) if negligence is established, whether the Claimant was contributorily negligent; and (iii) if so, the extent to which any damages should be reduced.

Background

The following background facts are not in dispute.

On the evening of 19 December 2021, at approximately 8.30pm, the Claimant and Ms Rai, were walking home after visiting a friend. It was dark but dry. They were walking at a normal, leisurely pace. The journey home was expected to take approximately 15 minutes. They had been walking for about 10 minutes when they approached an unnamed slip road leading to the A340 Ringway West at the western end of Worting Road.

Worting Road is a two-way single carriageway. Approaching from the east, the nearside (left) is bordered by a kerbed footpath with trees and bushes, and the offside (right) by a footpath adjoining residential properties. As the road rises onto the overbridge leading to the slip road, its central markings change from hazard lines into hatched markings, then a short ghost island, followed by a raised traffic island. Over the bridge, the road widens into a dual carriageway section with single traffic lanes and adjacent cycle lanes in each direction. A dedicated right turn lane, approximately 24 metres long, allows eastbound traffic to cross the central reservation and enter the slip road. At the junction itself, the westbound footpath includes dropped tactile paving and a hatched buffer area for pedestrians. The distance across the Give Way lines is approximately 11.3 metres and the westbound carriageway is about 5 metres wide. The slip road spans roughly 8.8 metres between the dropped kerbs comprising a single running lane for vehicles turning off Worting Road with adjoining kerbside margins.

At around the same time the sisters were approaching the slip road, a silver-coloured Rover 75 driven by Mr Bolton was travelling from the easterly direction along Worting Road. Mr Bolton entered the right‑hand filter lane, slowed to a moderate speed, and commenced a right turn into the slip road. His headlights were illuminated. He did not see the Claimant or her sister before entering the slip road. Both pedestrians were wearing dark, non‑reflective clothing. Although there was streetlighting along Worting Road, there was no direct lighting on the bridge section, and the absence of lighting in the area from which the sisters emerged meant that the background behind them was unlit. Mr Bolton first became aware of the pedestrians only when the front of his vehicle was already 1–2 metres into the slip road. He had not seen anyone walking on the pavement towards the slip road prior to this. He observed Ms Rai and her sister briefly in his peripheral vision on the right side of the windscreen shortly before the collision. He felt the impact and stated that the Claimant “rolled up the bonnet and fell off to the right-hand side of my vehicle approximately 1 or 2 feet away.” He braked hard and brought his vehicle to a stop. He called the emergency services immediately.

The attending police officers were not eyewitnesses to the collision; their role was limited to scene management, routine driver testing, and obtaining witness details. No formal police accident reconstruction was undertaken. The complexity of assessing impact timing, sightlines and movement led both parties to instruct accident reconstruction experts.

The Claimant sustained multiple injuries, including a moderate to severe traumatic brain injury, as recorded in the report of Dr Tracey Ryan Morgan, consultant clinical neuropsychologist, dated 3 July 2023.

Issues for Determination

The Claimant alleges the Defendant was in breach of duty in that Mr Bolton: (i) failed to keep any or any proper lookout; (ii) failed to observe and/or heed the presence of the Claimant and her sister crossing the slip road. The Claimant relies upon Mr Bolton’s response when questioned by PC Johnston at the scene of the accident at approximately 9.37pm where he stated: "I just sort of noticed they were there as I was mid crossing this road. I don't know why I didn't see them but there we go. I was too busy focusing on if cars were coming, not the path itself.” [emphasis added] - (‘the “too busy” comment’); (iii) failed to give way to the Claimant and her sister who were crossing the slip road into which he was turning and had priority; (iv) drove too fast; (v) failed to slow down or stop in time or at all; (vi) failed to sound his horn; (vii) failed to steer, manage or control his car so as to avoid the accident; and (viii) failed to have any or any adequate regard for the safety of other road users.

The Defendant’s case is that the collision occurred without a causative breach of duty on Mr Bolton’s part. His lights were on, he indicated his intention to turn right, reduced his speed, carried out appropriate checks, and then commenced the turn. The Claimant is put to proof in relation to breach of duty and causation.

In light of the evidence and the parties’ respective positions, the following issues arise for determination, so far as the evidence permits:

Collision Investigation and Expert Reports

The parties’ accident reconstruction experts each prepared an individual report. Mr Green, instructed on behalf of the Claimant, produced a report dated 1 October 2025. Mr Loat, instructed on behalf of the Defendant, produced an initial report dated 4 November 2025 and an addendum dated 8 December 2025. The experts also prepared a Joint Statement dated 24 December 2025.

The principal areas of agreement and disagreement between the experts (prior to concessions made during their oral evidence) may be summarised as follows.

The core disagreements concern timing (when each party arrived at the point of potential conflict), visibility (whether a reasonably careful driver keeping an adequate lookout should have seen the pedestrians), and obstruction (the extent to which the Rover’s A-pillar may have masked the Claimant from view).

Both experts accepted that there is no fixed physical evidence identifying the precise moment or location of impact. Their reconstructions therefore depend on assumptions applied to incomplete data.

Applicable Legal Principles

As this is a civil claim in negligence, the burden lies on the Claimant to prove, on the balance of probabilities: (i) that Mr Bolton owed her a duty of care (which is not in dispute); (ii) that he breached that duty, and (iii) that any such breach caused the collision and her injuries. If the Claimant cannot establish a coherent factual foundation upon which negligence may properly be inferred, the claim cannot succeed. If breach and causation are established, the burden shifts to the Defendant to prove contributory negligence.

The applicable standard of care is that of the reasonably careful and competent driver, exercising ordinary prudence with due regard to the risks posed to other road users. A motor vehicle is inherently capable of causing serious injury, and the authorities emphasise the need for drivers to be vigilant: see Latham LJ at [20] in Lunt v Khelifa [2002] EWCA Civ 801. The standard is not a counsel of perfection, nor should the driver’s conduct be judged with the benefit of hindsight. In Birch v Paulson [2012] EWCA Civ 487), the Court stated that reasonable care, not ideal care, is the governing test. Similarly, in Ahanonu v South East London & Kent Bus Co [2008] EWCA Civ 274, Laws LJ at [23] warned against reconstructing the standard of care using “fine considerations elicited in the leisure of the courtroom, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant’s safety than a duty to take reasonable care.”

Section 38(7) of the Road Traffic Act 1988 provides that a breach of the Highway Code does not of itself give rise to liability, but it may be relied upon to establish or negate liability. Relevant provisions include:

A driver executing a right turn across the path of approaching or crossing pedestrians bears a heightened duty to maintain proper observation of the area into which the vehicle is being steered.

Pedestrians must take reasonable care for their own safety, including by looking properly before crossing. However, the courts have long recognised the inherent disparity in risk between a pedestrian and a motor vehicle. In Baker v Willoughby, the House of Lords observed that a pedestrians movements pose little danger, whereas a driver must maintain an active and vigilant lookout.

Where the Claimant cannot recall the accident and there is limited eyewitness evidence, the Court may draw reasonable inferences from circumstantial evidence but must not speculate. In Caswell v Powell Duffryn [1940] AC 152 at [169] the House of Lords distinguished inference from conjecture or speculation: an inference must be grounded in proven facts; without such a basis, findings cannot reliably be made. The Court must also exercise caution where the factual evidence is uncertain. In Lambert v Clayton [2009] EWCA Civ 237, Smith LJ warned against making findings of unwarranted precision where the evidential foundation does not justify it.

Expert evidence must also be approached with care. In Liddell v Middleton [1996] P.I.Q.R P36, the Court held that experts may not opine on ultimate issues, such as negligence or what a driver “should have seen”, as these are matters for the Court. In Stewart v Glaze [2009] EWHC 704 (QB), Coulson J cautioned against treating accident reconstruction calculations as a rigid “fixed framework or formula” by which a driver’s actions are judged with mathematical precision. Such evidence may assist in evaluating the factual evidence, but it cannot displace the Court’s evaluation of the circumstances.

If liability is established, the Court must consider whether the Claimant failed to take reasonable care for their own safety. The assessment is fact sensitive. The Court must consider both: (a) relative blameworthiness (the degree of departure from reasonable care), and (b) the extent to which each party’s actions contributed to the accident. In Eagle v Chambers the Court of Appeal observed that it is “rare indeed” for a pedestrian to be more responsible than a driver unless the pedestrian “suddenly moves into the path of an oncoming vehicle.”

In Sabir v Osei Kwabena the Court held that even where a pedestrian misjudges a crossing, the driver’s failure to maintain an adequate lookout may remain the more significant factor.

A number of video recordings were placed before the Court. These comprised: (i) footage recorded by police officers on the night of the accident, including body worn video and several “drive through” recordings; and (ii) recordings made subsequently by the Claimant’s expert during a site visit.

The police recordings were taken in the lighting conditions that prevailed on the night of the collision, using Mr Bolton’s Rover 75. They include commentary from the attending officers as they performed a drive-through of the right turn manoeuvre. It was observed that a pedestrian dressed in dark clothing was “challenging to see” and, at certain points of the manoeuvre, could be obscured by the vehicle’s A-pillar. The commentary also raised the possibility that a pedestrian unfamiliar with the junction might look in the wrong direction before stepping into the carriageway.

The Defendant submits that these police recordings provide the most reliable contemporaneous evidence of the lighting conditions, the conspicuity of pedestrians wearing dark clothing, the effect of the A-pillar, and what a driver in Mr Bolton’s position could or should have observed on approach. The Claimant, by contrast, relies in particular on the body worn footage capturing Mr Bolton’s immediate account to police at the scene, in which he made the “too busy” comment. The Defendant contends that this comment must be interpreted in context; the interview was not conducted under caution, the scene was illuminated by emergency vehicles, and Mr Bolton was positioned on the central island rather than at the point from which he approached the junction.

Ms Rai gave evidence through a Nepalese interpreter and adopted the contents of her two witness statements, dated 7 June 2023 and 20 May 2025. She explained that both she and the Claimant are Nepalese nationals and daughters of an ex-Gurkha. The Claimant had been in the UK only since 23 October 2021, a short time prior to the accident, whereas Ms Rai had arrived in 2017. Although neither sister had learnt to drive in Nepal or in the UK, Ms Rai explained that she was familiar with the local roads, having lived in Basingstoke since 2019 and had crossed the slip road on numerous occasions both during the day and at night. She had taken care to teach the Claimant how to cross roads safely in the UK and said they frequently crossed busy roads together.

Ms Rai stated that, on the evening of 19 December 2021, she and the Claimant were walking home at a normal pace. As they approached the slip road leading to the A340, they were walking one behind the other, the Claimant two steps ahead, and they were talking to each other. She said she reminded the Claimant to look out for traffic and saw her look both left and right before stepping into the slip road; Ms Rai also looked before crossing. They crossed from the yellow tactile paving at the kerb, a point Ms Rai regularly used when crossing that junction. She described a vehicle suddenly arriving “…at what seemed considerable speed,” turning right into the slip road and striking the Claimant on her left leg. The Claimant fell backwards, struck her head on the ground. Ms Rai recalled her sister falling in the location where the bloodstain (Marker 3) was later identified. She said she shouted at the driver to stop and called out to the Claimant, who did not respond. She believed the driver got out of his vehicle and called an ambulance. Ms Rai said that she went into a state of shock immediately after the collision and had only a limited recollection of the events that followed, though she did remember the police attending and her sister being taken to Southampton Hospital.

In cross-examination, Ms Rai maintained that she had reminded the Claimant to look in both directions. She stated that the Claimant was almost across the road, while she herself was halfway across, when the collision occurred. She denied attempting to move the Claimant after the collision and rejected the suggestion that she might be mistaken about that. She accepted, however, that the police statement she signed on 16 January 2022 incorrectly recorded that they had been walking home from “work”, but stated that she had not used that word. Although the statement had been read back to her in Nepali and that she had confirmed its contents were accurate she explained that she had been in shock and stressed and did not appreciate that a correction was required. She accepted that her police statement did not mention the sisters walking one behind the other but said she had explained that to the police. During cross examination she also marked on a photograph where she believed the Claimant had been positioned at the point of impact.

Mr Bolton adopted his witness statement dated 9 September 2024. He explained that he passed his driving test in 2017 and that, at the time of the accident, he had a clean driving licence, although he has since incurred six penalty points for unrelated matters. He does not wear glasses. He stated that he was familiar with Worting Road and the surrounding road layout, having lived in Basingstoke since childhood, and that he had executed the right-turn into the slip road on many previous occasions in both daylight and darkness.

He stated that the road surface was dry and his headlights were illuminated. As he approached the central reservation, he slowed to approximately 10–15 mph and checked for oncoming traffic before commencing his right-hand turn, believing the way to be clear. He stated that he did not see any pedestrians on the pavement before beginning the turn. He first became aware of the Claimant and her sister when they appeared in his peripheral vision on the right-hand side of his windscreen just as the front of his vehicle entered the slip road. Both pedestrians were wearing dark clothing. The collision followed almost immediately. He described feeling the impact, braking hard, and swerving left before coming to a stop with his front wheel against the kerb. He stated that once he had seen the pedestrians there was no opportunity to avoid the collision. He estimated that the Claimant was two to three steps into the road when the impact occurred. He said that when he got out of the car, he saw the Claimant being dragged by her arm by the other pedestrian and intervened to prevent her being moved. He placed the Claimant in the recovery position following instructions from emergency services. He cooperated fully with police enquiries and roadside testing.

In cross examination, Mr Bolton accepted that his recollection of certain events was limited and that he could not remember some aspects of the immediate pre-collision events. He accepted that he did not specifically recall looking for pedestrians on this occasion, but said it is something he would ordinarily do.

Mr Green, the Claimant’s accident reconstruction expert, adopted his report dated 1 October 2025, together with the Joint Statement of 24 December 2025. He explained that his methodology included reviewing the police scan data, taking measurements at the scene, examining photographic material, and conducting his own site visits.

Mr Green stated that based on his own observations of the scene at night, it was his view that pedestrians in dark clothing could be visible to a driver making careful observations when approaching the junction, including through the driver’s side window immediately prior to committing to the turn. He considered that a driver taking proper care should anticipate the possibility of pedestrians entering the slip road.

Mr Green confirmed that whilst he had reviewed the police video recordings taken on the night of the accident, he considered that the recorded light levels did not accurately reflect the lighting conditions he observed during his own night-time visit. He regarded the commentary on the videos as opinion and considered the interpretation of that material as a matter for the Court. He explained the rationale for the range of walking speeds he adopted and addressed the effect of the A-pillar at different stages of the turn. He accepted that the point at which Mr Bolton’s attention would likely have been primarily directed straight ahead was a matter of agreement between the experts. He also accepted that the A-pillar would obscure a pedestrian for part, though not the entirety, of the turning manoeuvre and acknowledged that perception–reaction time would only be triggered once a pedestrian had stepped into the roadway.

It was put to Mr Green that certain aspects of his analysis did not reflect the contemporaneous police reconstruction footage and that he had not modelled the accident using software. He stated that he did not consider additional modelling to be reliable given the number of unknown variables (including the absence of physical markers establishing speed, pedestrian location, point of impact and the absence of three-dimensional Rover 75 model). His analysis therefore focused on physical measurements, site observations, and the agreed scan data. He was referred to the observations in Rowbottom v Howard & Teasdale [2023] EWHC 931 (KB) (a case in which he had given expert evidence) where the Court had been critical of his approach and emphasised an expert’s duty to address all the relevant evidence rather than only that which supports his preferred hypothesis. Mr Green objected to that criticism, stating: “I don’t think that was fair at all.”

Mr Green acknowledged that perception studies emphasise that what is visible is not necessarily seen and accepted that he was not better placed than the police investigator who attended the scene on the night to form a view about lighting conditions at that time.

Mr Loat, the Defendant’s accident reconstruction expert, adopted his principal report dated 4 November 2025 and his addendum dated 8 December 2025, together with the Joint Statement of 24 December 2025. His methodology included analysing the police scan data, the contemporaneous photographic record, the measurements taken at the scene, and the video material produced by the police during their drive-through reconstruction. He did not conduct a night-time site visit, stating that the contemporaneous police recordings provided a more reliable basis for assessing lighting conditions and the conspicuity of pedestrians.

Mr Loat’s evidence addressed the modelling he carried out to explore a range of possible vehicle and pedestrian positions, including scenarios using some of Mr Green’s assumptions. He explained that the modelling was constrained by the lack of reliable physical anchors, including the absence of a fixed point of impact, and therefore produced a range of scenarios rather than a single reconstruction. He adopted a mid-range walking speed (1.4 m/s) and mid-range vehicle speed (17 mph) in one of his principal models. His evidence also addressed the potential influence of the A-pillar, explaining that in some scenarios the Claimant might have been wholly or partially obscured until shortly before impact. He referred to the importance of “expectancy,” “conspicuity,” and the “signal value” of a pedestrian to a reasonably alert driver, drawing on the literature cited in his report, and explained that whether an object is strictly visible is not necessarily the same as whether it would realistically be seen.

Mr Loat considered the police drive-through videos to have probative value because they used Mr Bolton’s vehicle, reflected the actual road geometry, and captured the lighting conditions in close proximity to those on the night of the accident. He noted that the Claimant and her sister would have been set against a dark, unlit background and that, combined with their dark clothing, this would have reduced their conspicuity. He relied on the contemporaneous observation that a pedestrian in those conditions was “challenging to see.”

In cross examination, Mr Loat accepted certain typographical errors in his report and explained the basis on which he revised aspects of his opinion in the addendum. He emphasised that his modelling was not capable of producing a definitive reconstruction but could demonstrate whether a proposed scenario was or was not consistent with the physical evidence. He acknowledged that there were some questions he was not well placed to answer, including those relating to population specific walking statistics.

The Claimant submits that Ms Rai’s evidence is reliable on the key matters relevant to liability. Her account of the sisters’ approach to the slip road (walking one behind the other, with the Claimant slightly ahead, and both looking before stepping into the carriageway) has been broadly consistent from her earliest statements through to her oral testimony. The Claimant further submits that her account accords with the wider evidential picture, including the fact that only the Claimant was struck by the vehicle. Although Mr Hiorns accepted that Ms Rai’s mark on the photograph, which was meant to indicate the point of impact, could not be accurate given the known resting position of Mr Bolton’s car, he contended that this discrepancy, together with the mistaken reference in Ms Rai’s initial police account to “returning from work” are minor errors readily explained by the shock she experienced immediately after the collision. These matters, it is said, do not undermine the reliability of her evidence regarding the events before impact.

The Claimant also relies on Ms Rai’s evidence that she reminded the Claimant to look for traffic, saw her do so, and then looked herself. This, it is submitted, demonstrates compliance with the Highway Code and supports the contention that the Claimant had already begun to cross before Mr Bolton commenced his turn. On the Claimant’s case, she therefore had priority under Rule 170 and required Mr Bolton to stop at the Give Way lines.

As to the expert evidence, the Claimant relies on Mr Green’s opinion that pedestrians in the Claimant’s position could have been observed with careful pre-turn observation, including through the driver’s side window immediately before committing to the manoeuvre. The Claimant submits that Mr Green’s analysis supports the conclusion that Mr Bolton should have seen the sisters on approach and that his failure to do so amounted to a breach of duty. It is further submitted that the Defendant’s expert modelling does not displace this conclusion, as it depends on unverifiable assumptions, and that the absence of fixed physical markers does not prevent the Court from drawing sensible inferences on the balance of probabilities. On the Claimant’s case, partial A-pillar masking and limited sighting opportunity do not explain why a reasonably careful driver, exercising proper caution at a junction, would not have checked for pedestrians before turning.

The Defendant submits that the Claimant has not discharged the burden of proving either breach of duty or causation. They emphasise the evidential uncertainties inherent in this case, including the absence of reliable physical anchors establishing the point of impact, the Claimant’s walking speed, or the precise positions and movements of the parties. In reliance on authorities such as Lambert v Clayton and Caswell v Powell Duffryn, the Defendant contends that the Claimant’s case rests on conjecture and invites findings of a precision the evidence cannot support.

As to the lay evidence, the Defendant submits that there are material inconsistencies between Ms Rai’s initial police statement, the location of the point of impact she marked on the photograph, and her oral evidence. They argue that aspects of her testimony reflect unfamiliarity with UK traffic patterns, including her belief that vehicles might come “from both sides.” The Defendant relies on the police reconstruction commentary suggesting the Claimant may have looked in the wrong direction when stepping into the road. It is submitted that Ms Rai’s assertion that her and her sister “stopped and looked both sides” lacks credibility, and that her reminder to the Claimant to look supports the inference that the Claimant may not have done so. By contrast, the Defendant submits that Mr Bolton gave his evidence in a straightforward and consistent manner, making appropriate concessions where his memory was limited, and that his account accords with the physical evidence, including the final resting position of the vehicle and the evidence that he swerved. They also emphasise that he had an otherwise unblemished driving record at the time of the accident and that his “too busy” comment, is consistent with the Defendant’s case on limited sighting opportunity.

As to the expert evidence, the Defendant submits that Mr Green’s opinions were of limited probative value and in parts inadmissible, in light of Liddell v Middleton. They highlight his failure to model the accident, his refusal to analyse the police video evidence despite having reviewed it, inconsistencies between his report and oral testimony, and his acknowledgment that he was not better placed than the forensic collision investigator to evaluate conspicuity. The Defendant argues that Mr Green’s approach disregarded essential principles of accident reconstruction, including expectancy, conspicuity, and available information to the driver. By contrast, the Defendant submits that Mr Loat’s evidence was balanced, compliant with CPR 35, and candid in accepting the limitations of the underlying data. His modelling explored a range of plausible scenarios and incorporated assumptions favourable to the Claimant.

Taken together, the Defendant submits that the expert and lay evidence demonstrates that Mr Bolton could not reasonably have perceived the pedestrians before committing to the turn, and that once they entered his field of view, the available reaction time was insufficient to avoid the collision.

I turn to my analysis and findings.

The central issues in this case concern what, if anything, Mr Bolton should reasonably have perceived before initiating his right hand turn into the slip road, and whether any such failure amounted to a breach of the duty of care owed to the Claimant. The core factual dispute turns upon visibility, attentional focus, and the pre-impact window in which any hazard may have become apparent. The expert evidence provides the scientific context within which the primary factual evidence must be evaluated but, as the authorities make clear, it cannot replace the primary factual findings nor be permitted to operate as a rigid framework against which conduct is judged with artificial precision.

I accept and adopt the matters agreed between the experts as set out above. Those agreed matters form the evidential foundation against which I assess the disputed issues.

The issues in this case, particularly those relating to visibility, lookout, and pre-impact positioning, are inherently overlapping. Some repetition in the Analysis section is therefore inevitable, as the same factual considerations bear on multiple legal questions which must each be addressed separately.

The factual evidence was inevitably limited. The Claimant was rendered incapable of giving evidence. The only eyewitnesses were Ms Rai and Mr Bolton. Their accounts diverge on important matters, but both witnesses gave evidence honestly and without embellishment. However, the Court must be alert to the inherent frailties of human recollection, particularly where events unfolded in a matter of seconds, in conditions of darkness, and under the psychological impact of a sudden traumatic event for both Mr Bolton as the driver and Ms Rai who witnessed the collision from close quarters.

Ms Rai, at her solicitor’s request, measured the Claimant’s average pace length by asking her to walk ten normal paces, covering 4.54 metres, and producing an average of 45.4 cm per pace. The Claimant is 5’3” (1.6 metres) tall. Little weight can be drawn from this exercise: the concept of a “normal pace” is inherently imprecise and does not permit any reliable conclusion to be reached about the Claimant’s walking speed. In any event, her average pace after the collision may have differed significantly from her pre-collision walking speed. Although the overall distance across the slip road is known, the evidence does not permit findings as to the precise point of impact or how far across that distance the Claimant had travelled at the relevant moment. As both experts accepted, small variations in assumed walking speed or in the Claimant’s position on the crossing would materially alter any reconstructed sequence of movements. In these circumstances, resort to population based average walking speeds would risk introducing a degree of precision the evidential picture does not support.

I note that it was Ms Rai’s belief that traffic in the UK was more predictable than Nepal, and that neither sister held a driving licence nor was familiar with UK driving rules. Although I accept that Ms Rai sought to assist the Court and that key aspects of her account have remained broadly consistent, her evidence contained several inconsistencies and uncertainties: (i) she incorrectly identified the point of impact, as her marked location could not be reconciled with the vehicle’s known post-impact position; (ii) her initial police statement misstated the purpose of the journey; and (iii) she appeared uncertain regarding the direction of traffic flow. None of these matters suggests any attempt to mislead the court, but they do diminish the reliability of her recollection of the precise positioning of the parties. I have treated the evidence of Ms Rai with caution, unless corroborated.

Against that background, I do not accept that the Claimant looked in both directions before crossing. I find that she did look, but in the wrong direction—namely to her right rather than to her left. If she had looked to her left, she would have seen Mr Bolton’s vehicle. Ms Rai’s genuinely held but mistaken belief that the Claimant looked in both directions can be explained, at least in part, by the trauma she experienced. In her police statement Ms Rai said, “I went into a state of shock such that I cannot remember what happened after the accident,” and she repeated this when challenged about whether she and her sister had been returning from work or from a friend’s house. I further find that in that state of shock she attempted to move her sister after the collision.

Mr Bolton’s evidence was clear and, in material respects, consistent with the contemporaneous police body worn footage. He accepted limitations in his memory, made appropriate concessions including that he could not now recall exactly when he checked for pedestrians, and did not seek to exaggerate or justify his conduct. Nothing in the physical evidence contradicts his account that, as he approached the right-hand filter lane, he put his indicators on, slowed to approximately 10-15 mph, and commenced his turn. He perceived the pedestrians only shortly before the moment of impact and immediately braked and swerved left. His description of the swerve was not challenged, and his vehicle’s resting position is entirely consistent with that manoeuvre.

The police drive-through footage, recorded in the hours of darkness with Mr Bolton’s vehicle and on the same road geometry, provides objective assistance. Although not a formal reconstruction, the recordings showed that a pedestrian wearing dark clothing and approaching from the unlit bridge footpath would be “challenging to see.” This observation aligns with the undisputed evidence that the sisters wore dark clothing and were set against a dark background resulting in low conspicuity. The footage therefore provides support for Mr Bolton’s account that he did not, and could not, perceive the pedestrians until immediately before impact. I accept Mr Bolton’s factual evidence in its entirety.

The physical evidence is limited. Damage to the vehicle was confined to the offside. There were no meaningful road marks such as gouges or tyre marks and no CCTV footage. Mr Green accepted that if the Claimant had been moved after the collision, no inference could be drawn from the presence of blood at Marker 3. Having accepted Mr Bolton’s unchallenged evidence that the Claimant was moved, I am not satisfied that the blood at Marker 3 represents her post‑impact resting place.

Mr Green accepted that nothing in the physical evidence contradicted Mr Bolton’s account, save for his evidence that a swerve is a “violent” manoeuvre. I prefer the evidence of Mr Loat on this issue. Given that Mr Bolton’s wheels would have been turned to the right at the point of impact, the vehicle ending up against the pavement required a deviation in course, which is consistent with his account of having swerved to the left side of the slip road. For the reasons already given, I accept that he did so.

The expert evidence does not permit a reliable reconstruction of the parties’ precise movements before impact. Both experts accepted that there is no physical evidence fixing the point of impact, no reliable indicators of the Claimant’s walking speed, and no road marks from which to conduct a backward reconstruction. The bloodstain identified at the scene cannot safely be taken as representing the Claimant’s resting position if, as I find, she was moved after the collision.

Mr Green’s opinion was that, with careful pre-turn observation through the driver’s side window, a reasonably careful driver could and should have observed the pedestrians before entering the slip road. However, he accepted a number of important limitations. He agreed that what is visible is not necessarily seen; that the relevant hazard period, which triggers perception–response time, only begins once a pedestrian steps into the roadway; and that the off side A-pillar would obscure the driver’s sightlines for part, though not all, of the turning manoeuvre. He also accepted that he was not better placed than the forensic collision investigator who attended the scene on the night to assess lighting and conspicuity.

Mr Green declined to model the accident, despite having undertaken a laser scan of the scene. He accepted that the use of Landolt rings would have allowed him to take photographs capable of providing a fair representation of the lighting conditions but did not take such photographs and confirmed that he had never used that method. In cross examination he stated, “I am not saying the Defendant should have seen the pedestrian. My role is not to say what the driver should or should not have seen,” yet his report stated that a driver taking proper care “should have seen” both pedestrians and anticipated their movement into the slip road. His evidence shifted between what Mr Bolton could have seen and what a reasonable driver would have seen, and clarification was required more than once. Furthermore, his reliance on his own night-time observations limits the weight that can safely be placed on his conclusions. I therefore attach limited weight to his evidence on visibility and conspicuity.

By contrast, I found Mr Loat’s evidence to be measured and carefully limited by the constraints of the physical evidence. His approach was consistent with the contemporaneous material. His analysis of expectancy, signal value, attentional focus at the initiation of the turn, and the influence of A-pillar masking was cogent and rooted in the scientific literature on which both experts relied. His modelling demonstrated that small variations in either party’s assumed speed or position materially altered the sequence of movements, and that in the absence of fixed impact markers, no definitive reconstruction could be achieved. He did not overstate what the evidence could support.

Both experts ultimately agreed that their respective estimates of walking distance, speed, and impact location depended on assumptions that were highly sensitive to small changes in variables. In these circumstances, any approach involving excessive precision would be unwarranted.

The evidence does not allow the Court to establish with sufficient certainty the Claimant’s position when she stepped from the kerb, nor the precise location of the impact. There is no physical evidence fixing the point of impact. The bloodstain cannot be treated a reliable indicator of the Claimant’s position after impact for the reasons already stated.

The experts’ models diverged because slight changes in assumed variables produced materially different results. Given the uncertainty inherent in these assumptions and the lack of independent physical markers, I cannot conclude whether the Claimant was already well established in the running lane or stepped into the road after Mr Bolton had crossed the Give Way lines. The proposed sequence advanced on behalf of the Claimant cannot therefore be treated as proved.

The undisputed evidence is that the Claimant and her sister were wearing dark, non-reflective clothing, that the footpath from which they approached was unlit relative to the driver’s direction of travel and that they emerged against a dark background. Both experts accepted that these factors substantially reduced their signal value to an approaching driver. In addition, Mr Bolton’s offside A-pillar would obscure his view for part of the turning manoeuvre.

It is also agreed evidence that a driver initiating a right hand turn across a live carriageway focuses primarily on oncoming traffic. It follows that the combination of low conspicuity, unlit background, partial A-pillar masking, and necessarily limited attentional focus significantly restricted the perception opportunity available. The police drive-through footage and Mr Bolton’s account are consistent with this conclusion.

In these circumstances, I am not satisfied, on the balance of probabilities, that a reasonably careful driver should have perceived the Claimant before she stepped into the running lane.

In assessing the standard of care, the Court must avoid judging the driver’s conduct with hindsight or by reference to an idealised standard of perfection. The obligation is to take reasonable care, not to eliminate all risk.

Even if, contrary to my findings, an earlier sighting was theoretically possible in some scenarios, the Claimant has not demonstrated that such an earlier observation would probably have enabled Mr Bolton to avoid the collision. On the expert evidence, the reaction time available once the pedestrians stepped into the roadway was extremely short, and the underlying factual assumptions too variable to permit a finding that a realistic opportunity to avoid the collision existed.

In light of my findings on primary liability, no reduction for contributory negligence arises.

Whilst I have great sympathy for the Claimant, who has suffered serious injuries as a result of the accident, I must dismiss her claim in negligence against the Defendant.

The key factual findings (as referred to above) are as follows:

Taken together, these findings determine all of the relevant factual issues identified for resolution earlier in the judgment. Having considered the factual and expert evidence, and bearing firmly in mind the limitations of both, I conclude that the Claimant has not established, on the balance of probabilities, that Mr Bolton breached his duty of care or that any act or omission on his part caused the collision. The evidential uncertainties must fall against the party who bears the burden of proof. The claim therefore fails on liability.

I am grateful to counsel and the solicitors for their careful preparation and assistance. The parties are invited to agree any consequential matters including costs. In the event that any such matters cannot be agreed, I will determine them on written submissions filed within 14 days of circulation of this judgment.